Washington’s Amended Fair Chance Act Will Impose Additional Obligations on Covered Employers

Washington State has an existing fair chance law (discussed here) but the statute, as amended by HB 1747, will impose additional obligations on employers that consider criminal records when vetting job applicants or employees. The amended statute takes effect for most employers in July 2026 and so employers should plan to update their criminal record screening policies and standard forms of notice.¹

Expanded Prohibitions on Covered Employers

The amended statute will make the following actions unlawful:

• Inquiring about criminal records before first extending a conditional job offer.
• Taking a tangible adverse employment action² based on an applicant's or employee's arrest record³ (excluding an adult arrest in which an individual is out on bail or released on their own personal recognizance pending trial) or juvenile conviction record.⁴
• Taking a tangible adverse employment action based on an applicant's or employee's adult conviction record,⁵ unless the employer has a legitimate business reason for taking such action.⁶

Expanded Obligations for Covered Employers

Employers must provide a form of pre-adverse action notice to the applicant or employee before taking a tangible adverse employment action. The notice must inform the applicant or employee of the record on which the employer is relying for purposes of assessing its legitimate business reason. The employer must hold open the position for a minimum of two business days to provide the applicant or employee a reasonable opportunity to correct or explain the record or provide information on the applicant's or employee's rehabilitation, good conduct, work experience, education, and training.

Employers also must provide a form of adverse action notice if they decide to take the tangible adverse employment action. Specifically, employers must provide such individuals with a written decision, including specific documentation as to the employer’s reasoning and assessment of each of the relevant statutory factors, including the impact of the conviction on the position or business operations, and the employer’s consideration of the applicant's or employee's rehabilitation, good conduct, work experience, education, and training.

Increased Penalties

The amendment increases the amount of the potential penalties for the first, second, and subsequent violations. The amendment also confirms that any penalties must be imposed per aggrieved job applicant or employee, for each violation.

Recommendations

Employers with operations in Washington should evaluate necessary changes in when and how they inquire into criminal history during the hiring process. They should also consider whether to undertake a broader (and privileged) assessment to strengthen their compliance with federal, state, and local employment laws that regulate use of a candidate’s criminal history (including in Seattle). Suggested action items for employers with employees in Washington and other jurisdictions with fair chance hiring laws are as follows:

• Review and update job applications and related forms for impermissible inquiries regarding criminal records;
• Review and update workplace postings to help ensure all required postings are included;
• Review and update company webpages for necessary additions about fair chance hiring;
• Provide training to recruiters and other personnel involved in posting job openings;
• Provide training to personnel who conduct job interviews and make or influence hiring and staffing decisions to explain permissible inquiries into, and uses of, criminal history;
• Provide training to personnel involved in ordering and adjudicating background reports;
• Review written and electronic communications about the hiring process, including conditional job offer templates and pre-adverse action and adverse action notices; and
• Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.